By Bethany Silverman
Drugs, alcohol and other substance abuse in the workplace is, as with any health and safety risk, is everyone’s responsibility as it poses a significant risk.
Businesses have an obligation to maintain safe working environments and manage workplace risks which extends to appropriately managing drug and alcohol related risks. As such, any right of an employer to drug test employees arises from the relevant State Work Health and Safety legislation.
However, it is important to remember that the right to test should only be exercised in the appropriate circumstances. Whilst some industries may set lawful limits of alcohol and mandate testing, this is not universal.
As workplace drug and alcohol testing is invasive, and can be expensive, employers should exercise caution when undertaking this process. Although it is lawful to direct an employee to be tested, it must be done in the right circumstances as not only will the employer bear the cost of doing so, but it may also damage the working relationship with the employee.
Can I test my employees for drugs?
Employees are also required to comply with work health and safety obligations, even in the absence of specific policies or contractual terms which prevent them from being under the influence of drugs while at work. Employees therefore have a duty to perform their jobs in a safe manner, meaning that taking drugs or being under the influence of alcohol may breach their obligations under work health and safety law.
Whether an employer can lawfully direct an employee to undertake drug and alcohol testing comes down to how reasonable the direction is. Although employers may want to be able to explicitly check whether an employee is under the influence of drugs while at work, for the direction to be lawful, the employer must believe there is a genuine risk to the health and safety of employee, their colleagues, or the general public.
This is why drug testing is commonly used in industries such as aviation, mining, construction and long-distance driving. This does not mean an employer cannot drug test an office worker, however they need to have a stronger basis for making the direction on the basis of health and safety.
Employers should be mindful that they cannot control what an employee does in their personal time. Disciplinary action may only be taken if the illicit drugs they are taking in their own personal time presents a health or safety risk when they’re working.
Drug testing policies
It is always recommended that employment contracts contain a term related to the employer’s expectations regarding drugs and alcohol in the workplace, and, that the employer has a detailed Drug and Alcohol Policy in place which states that the employer may direct the employee to undertake testing in certain circumstances.
While every business is different, a drug testing policy should specify the circumstances in which testing may occur, including when, why and how the tests will be done and whether they will be random, following an incident, or upon suspicion. The policy should also outline the potential consequences if the drug tests show positive results for illicit substances and should put in place certain safeguards to prevent reliance on false positives. It is also recommended that you establish support mechanisms such as rehabilitation or counselling to assist employees through the process.
Employers should also make sure employees are aware of the policies which apply to them. This includes clearly communicating any new or amended policies to staff, and ensure you have a process in which the employee signs off that they’ve read and understood the policy. Having the employees sign off is vital in proving that the employee was aware of the policy’s existence and therefore was bound by it.
While employers have the power to order drug testing in accordance with their WHS obligations, such power is accompanied by the responsibility to apply it in a sensible, serious and sensitive manner.
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Bethany Silverman is a qualified Senior Workplace Relations Consultant at FCB Group and HR Assured. She regularly provides advice to a wide range of businesses in respect of compliance with workplace laws and managing complex matters including disciplinary and performance management processes and terminations.